Targeted Killings: the NYT echoes Ken and Demands an Accounting

by Julian Ku

Our own Ken Anderson is one of the most knowledgeable and thoughtful legal scholars on the question of targeted killings by the United States. And he has noted here and the Volokh Conspiracy, he has developed a complex analysis of the U.S. policy toward targeted killings, which grounds such killings in the international law of self-defense rather than the law of war. And he has criticized the failure of the Obama Administration to provide any legal justification for these killings. (His distillation of all of this can be found in this new Weekly Standard article.)

Right on cue, Roger Cohen of the NYT argues for, basically, the same thing, although he is a bit confused in his argument.

America is not at war. The Obama administration has declined to say anything about this doctrine of targeted killing. It’s not clear how you get on a list to be eliminated; who makes that call; whether the decision is based on past acts (revenge, say, for the killing of C.I.A. agents in Khost, Afghanistan) or only on corroborated intelligence demonstrating that the target is planning a terrorist attack; what, if any, the battlefield limits are; and what, if any, is the basis in law.

. . .

. . . On balance, President Obama, who campaigned against the “dark side” of the war on terror and has insisted that America must lead by example as a nation of laws, owes Americans an accounting of his targeted killing program.

Revenge killings don’t pass the test for me. They’re unacceptable under international law. I want to know that any target is selected because there is verifiable intelligence that he’s actively planning a terrorist attack on the United States or its allies; that the danger is pressing; that arrest is impossible; and that civilian lives are not wantonly risked.

The bar of pre-emptive self-defense is then passed. A pinpoint strike is better than the Afghan or Iraqi scenarios. But that bar must be high. America departs at its peril from its principles.

Cohen’s analysis seems reasonable, although his first claim: “America is not a war” muddles his analysis. In legal terms, there is little doubt that the U.S. is engaged in an armed conflict in Iraq and Afghanistan and that U.S. military activities there are governed by the law of war. Moreover, the Obama Administration has adopted the Bush Administration’s claim that the U.S. is also in a state of armed conflict with Al-Qaeda, a non-state actor.

It seems to me that targeted killings in the Iraq or Afghan theaters against combatants there should fall neatly within the law of armed conflict rules. And while some countries may grumble, I don’t think there is a serious dispute that the U.S. may engage in armed conflict, including targeted killings, in those theaters

The targeted killings of Al-Qaeda combatants in other countries like Pakistan do raise the hardest legal questions,compounded by the fact that the killings are carried out by non-military combatants on the U.S. side. From the Obama Administration point of view (I am guessing), this too is part of the armed conflict and is indistinguishable from an Afghan or Iraq attack. Cohen (following Ken Anderson and Stuart Taylor) isn’t satisfied by this analysis.

Once a state of armed conflict exists, the US is free to target members of the enemy armed forces engaged in continuous combat function anywhere in the world. That is, the distinction between legal target and protected civilian is based on military status in the enemy army and not on geographical location. If you find them in a rowboat in international water you can blow them up 13 miles off the coast of France.

The geographical limitation occurs when an enemy target is located inside the territory of a neutral power. Then it is up to the neutral power to arrest and intern the enemy combatant. An attack on a member of the enemy armed force engaged in continuous combat function who happens to be on a beach in France is a violation of French sovereignty, but not an attack on a protected civilian. It is a violation of international law, but you have to identify right violation.

For some reason, lots of people seem to believe that an armed conflict is somehow geographically limited to a particular theater of operations, despite 300 years of French and British and Spanish ships fighting each other throughout the world whenever their countries were at war. Russel Crowe can make a movie like Mater and Commander: The Far Side of the World, but the NYT still doesn’t understand that any war by definition extends to the Far Side of the World. It would appear that the general public who watches movies is better informed on some of the laws of war than many experts.

In a war with the Taliban, the US is authorized to target Taliban military commanders anywhere they happen to be. An attack in Pakistan, however, requires the acquiescence of the Pakistan government. Objection to such attacks has to be through formal diplomatic channels, not by press release or TV interview. So far Pakistan appears to approve of the attacks and may be an active participant.

The use of civilians to manage these attacks raises no new issues, although the question has normally been raised from the other point of view. Civilians who participate in combat are subject to targeting just like soldiers. Normally, these are civilian sympathizers of the enemy. An organized high-tech system of attacks by a civilian agency is something new, but when the attack can be controlled from half way around the world, all the normal legal problems with civilian involvement no longer apply. It is not a question of the enemy making bad target discrimination decisions (between our civilians) and does not raise the likelihood of innocent casualties in CIA headquarters in Langley. Besides, if the world will not take action against Hamas on this question then there simply is no international law that applies to this question any more.

2.27.2010
at 11:51 am EST Howard Gilbert

Howard Gilbert: “In a war with the Taliban, the US is authorized to target Taliban military commanders anywhere they happen to be. An attack in Pakistan, however, requires the acquiescence of the Pakistan government.”

No, it doesn’t. If a neutral state fails or is unable to prevent violations of its neutrality by a belligerent, the other belligerent may attack the enemy on the territory of the neutral state.

Of course, as Mr Gilbert notes, Pakistan appears to at least tacitly condone the US attacks.

2.27.2010
at 2:03 pm EST Skeptic

The targeted killings of Al-Qaeda combatants in other countries like Pakistan do raise the hardest legal questions,compounded by the fact that the killings are carried out by non-military combatants on the U.S. side.

This is but one of many good reasons why the CIA should not be conducting targeted attacks (but if you want someone to do it, give it to JSOC, or some other military command). In fact, CIA shouldn’t be conducting any “direct action.” It distracts them from what their real mission was always supposed to be and should now be: gathering and analyzing intelligence. If the CIA as presently constituted is institutionally incapable of making that transition, let’s get rid of the CIA and start over.

2.27.2010
at 6:07 pm EST Anonsters

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